Gone GB LTD v. Intel Services Division, LLC

                   IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

GONE GB LTD. and ORI GERSHT,                     )
                                                 )
                    Plaintiffs,                  )
                                                 )
                    v.                           )       C.A. No. N21C-05-198 EMD CCLD
                                                 )
INTEL SERVICES DIVISION, LLC                     )
and INTEL CORPORATION,                           )
                                                 )
                    Defendants.                  )
                                                 )

                                      Submitted: December 2, 20221
                                       Decided: December 8, 2022

                     Upon Defendants’ Motion for Partial Judgment on the Pleadings
                   Dismissing Counts I and III—VII and Enforcing Limitation of Liability
                                               GRANTED

David E. Wilks, Esquire, Wilks Law, LLC, Wilmington, Delaware, David Leichtman, Esquire,
Leichtman Law PLLC, New York, New York. Attorneys for Plaintiff Gone GB LTD and Ori
Gersht.

Matthew E. Fischer, Esquire, Jonathan A. Choa, Esquire, Jacqueline A. Rogers, Esquire, Carla
M. Jones, Esquire, Potter Anderson & Corroon LLP, Wilmington, Delaware, Vanessa Soriano
Power, Esquire, Stoel Rives LLP, Seattle, Washington, Samantha K. Sondag, Esquire, Stoel
Rives LLP, Portland, Oregon. Attorneys for Defendants Intel Services Division, LLC and Intel
Corporation.


DAVIS, J.
                                        I.     INTRODUCTION

           This is a breach of contract and torts action assigned to the Complex Commercial

Litigation Division of this Court. Plaintiffs Gone GB LTD (“Gone”) and Ori Gersht

(collectively, “Plaintiffs”) commenced this action against Defendants Intel Services Division,

LLC and Intel Corporation (collectively, “Intel”). Plaintiffs asserted eight (8) counts against




1
    D.I. No. 38.
Intel, arguing that Intel wrongfully terminated the contract and committed several torts.

Plaintiffs seek more than $3 million in damages.

        Intel filed an answer with defenses to the counts and denying all tort claims asserted by

the Plaintiffs. Intel also moved for partial judgment on Counts I and III—VII and to enforce a

limitation of liability provision (the “Motion”). Intel asserts that the contract among the parties

was fully integrated and provides for an agreed upon liability clause for direct damages arising

from the contract. In addition, Intel contends that Plaintiffs’ tort claims are insufficiently pled.

        For the reasons stated below, the Court GRANTS the Motion.

                                       II.      RELEVANT FACTS

        A. FACTUAL BACKGROUND

        Mr. Gersht is an artist working principally with photography and film.2 Mr. Gersht is

based in London, United Kingdom.3 Mr. Gersht utilizes technology in his art.4 Gone is a United

Kingdom company.5 Gone is partially owned by Mr. Gersht.6 Mr. Gersht contracts his services

and art through Gone.

        Intel Corporation and its wholly owned subsidiary, Intel Services Division, LLC, are both

incorporated in Delaware, with principal place of business in Los Angeles, and Santa Clara,

California, respectively.7 Intel Corporation founded Intel Studios to “develop, manufacture, and

sell immersive experiences, including virtual reality, through what is known as volumetric

imaging.”8



2
  Am. Compl. ¶¶ 2-3, 9.
3
  Id.
4
  Id. ¶ 13.
5
  Id. ¶ 3.
6
  Id.
7
  Id. ¶¶ 4-5.
8
  Defendants’ Motion for Partial Judgment on the Pleadings and Enforcing Limitation of Liability (“Defs.’ Motion
for PJP”) at 3.

                                                        2
        In 2018, Intel and Plaintiffs “began discussing a potential collaboration on a volumetric

imaging project . . . the initial terms of that discussion were committed to a non-binding

Memorandum of Understanding with an effective date of April 1, 2019.”9 On June 1, 2019,

Gone and Intel entered into the Intel Co-Production Agreement (the “Agreement”).10 The

“Effective Date” of the Agreement is June 1, 2019 and the “Expiration Date” of the Agreement

is June 1, 2022.11 Mr. Gersht signed on behalf of Gone.12 In addition, Gone acknowledges that

all participation under the Agreement will be by Mr. Gersht “personally on behalf of Gone GB

LTD.”13

        The agreement was to create a virtual reality-based art piece utilizing Intel’s volumetric

imaging technology to create a 3D environment that participants would “travel” through during

the exhibition (the “Project”).14 Under the Agreement, “Intel and Gone would ‘co-develop, co-

produce, distribute, and exploit one or more Works as described in the relevant [Statement of

Work] and in accordance with the terms and conditions of this Agreement.’”15 Intel would

provide the services of Intel Studio, including use of Intel providing the studio space, Intel

personnel for capturing, processing, and storing the data captured at the studio, and use of Intel’s

proprietary software for developing the data into functioning, volumetric images.16 Mr. Gersht,

standing in place of Gone in the Agreement, would provide the creative direction for the

Project.17




9
  Defendants’ Answer and Defenses to First Amendment Complaint (“Defs.’ Answer”) at 15.
10
   Defs.’ Mot. at 4.
11
   Agreement at 1.
12
   Id. at 15.
13
   Id. § 2.2.
14
   Id. at 1.
15
   Id. § 2.1.
16
   Defs.’ Mot. at 5.
17
   Agreement § 2.2.

                                                     3
        In September 2020, Intel decided to close Intel Studios, partly due to the business impact

of COVID.18 On September 23, 2020, Intel notified Mr. Gersht that Intel was closing Intel

Services and terminating the Agreement between Gone and Intel.19

        B. PROCEDURAL HISTORY

        On June 1, 2021, Plaintiffs filed the complaint with the Court.20 On July 1, 2021, Intel

removed the case to the United States District Court for the District of Delaware.21 On March

28. 2022, the District Court dismissed with prejudice Plaintiffs’ federal claim for Computer

Fraud and Abuse Act and remanded the civil action back to the Court.22

        On June 9, 2022, Plaintiffs filed an Amended Complaint asserting eight counts against

Intel.23 On June 24, 2022, Intel filed an Answer and the Motion.24 On July 27, 2022, Plaintiffs

filed an Answering Brief in Opposition to Intel’s Motion for Partial Judgment on the Pleadings

(the “Opposition”).25 On August 10, 2022, Intel filed a Reply in Support of their Motion for

Partial Judgment on the Pleadings (the “Reply”).26

        The Court held a hearing on the Motion, the Opposition and the Reply on September 23,

2022.27 At the conclusion of the hearing, the Court took the Motion under advisement. This is

the Court’s decision on the Motion.




18
   Defs.’ Mot. at 8.
19
   Am. Compl. ¶ 138.
20
   D.I. No. 1
21
   D.I. No. 4
22
   D.I. No. 5
23
   D.I. No. 21.
24
   D.I. No. 23
25
   D.I. No. 28
26
   D.I. No. 30
27
   D.I. No. 37.

                                                 4
                                III.    PARTIES’ CONTENTIONS

   A. THE MOTION

          Intel contends that Counts I and III – VIII should be dismissed because: (i) the claims are

already within the scope of the Agreement and Plaintiffs’ existing contractual obligations, and

(ii) Plaintiffs failed to state a claim upon which relief can be granted. Intel also maintains that

the Limitations of Liability clause already provides an agreed-upon remedy for the present

matter.

          Intel notes that Count I (Estoppel and Promissory Estoppel), Count VI (Quantum Meruit),

Count VII (Conversion), and Count VIII (Unjust Enrichment and Restitution) are quasi-

contractual claims that apply when there is no written agreement between the parties. As such,

Intel contends that these counts should be dismissed because the Agreement governs the

relationship between the parties, and Plaintiffs’ claims are already within the scope of Plaintiffs’

existing contractual obligations under the Agreement.

          Intel also argues that Count III (Breach of the Implied Covenant of Good Faith and Fair

Dealing), Count IV (Tortious Interference with Contract), and Count V (Tortious Interference

with Prospective Economic Relationships) fail to state valid claims upon which relief can be

granted. Lastly, Intel asserts that the Agreement’s Limitation of Liability clause should limit any

surviving claims. Intel notes that the clause caps any actual and direct damages arising from and

out of the Agreement to $50,000.

   B. THE OPPOSITION

          Plaintiffs contend that Intel induced Mr. Gersht to make contractual commitments to third

parties in furtherance of the Project by making additional promises and undertakings beyond the




                                                   5
Agreement to Gone.28 When Intel terminated the Agreement, Plaintiffs claim this led to a “chain

of consequences that [Intel] knew would cause irretrievable harm to [Gone],” resulting in Gone

incurring damages and reputational injury in the art industry.

        Plaintiffs also argue that Intel was aware of Mr. Gersht’s two-year commitment cycles to

art projects. By terminating the Project near the two-year mark, therefore, Intel caused Plaintiffs

to lose out on the expected millions of dollars in profit from the Project. Plaintiffs contend that

the damages resulting from Intel’s breach of contract and torts amounts to at least $3 million,

with the exact amount to be determined at trial.

        Plaintiffs disagree with Intel’s interpretation of the Limitation of Liability clause.

Plaintiffs argue that as the clause does not speak to a termination without cause. In support,

Plaintiffs cite to (i) Section 12.4: “Parties have all other remedies at law or in equity available

whether or not this Agreement is terminated,”29 and (ii) Section 12.2: “[i]n addition to any other

remedies under this Agreement, or as may be available at law or in equity, either party may

terminate this Agreement for cause. . . .”30 Plaintiffs contend that Sections 12.2 and 12.4 render

the Limitation of Liability clause ambiguous, and the most plausible interpretation of the

provisions shows that “the parties intended different remedies to apply to claims of improper

termination, where the parties would have available all remedies for all harm actually suffered,

as opposed to other types of breach.”31




28
   Plaintiffs’ Answering Brief in Opposition to Defendants’ Motion (“Pls.’ Answering Br.”) at 2.
29
   Pls.’ Answering Br. at 24, citing Agreement § 12.4.
30
   Intel Co-Production Agreement (“Agreement”) § 12.2.
31
   Pls.’ Answering Br. at 25.

                                                         6
                                    IV.     STANDARD OF REVIEW

        A party may move for judgment on the pleadings pursuant to Civil Rule 12(c).32 In

determining a motion under Civil Rule 12(c) for judgment on the pleadings, the Court is required

to view the facts pleaded and the inferences to be drawn from such facts in a light most favorable

to the non-moving party.33 The Court must take the well-pleaded facts alleged in the complaint

as admitted.34 When considering a motion under Civil Rule 12(c), the Court also assumes the

truthfulness of all well-pled allegations of fact in the complaint.35 The Court must, therefore,

accord plaintiffs opposing a Rule 12(c) motion the same benefits as a plaintiff defending a

motion under Civil Rule 12(b)(6).36 The Court may grant a motion for judgment on the

pleadings only when no material issue of fact exists and the movant is entitled to judgment as a

matter of law.37

                                            V.      DISCUSSION

        As an initial point, the Court finds that a valid agreement exists between Gone and Intel.

While not specifically argued, the Agreement is supported by consideration, contains all material

provisions, and the parties performed numerous obligations under the Agreement prior to Intel

notifying Mr. Gersht, on September 23, 2020, that Intel was closing Intel Services and



32
   Civil Rule 12(c) provides:
           Motion for judgment on the pleadings. -- After the pleadings are closed but within such time as not
           to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment
           on the pleadings, matters outside the pleadings are presented to and not excluded by the Court, the
           motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and
           all parties shall be given reasonable opportunity to present all material made pertinent to such a
           motion by Rule 56.
Del. Super. Civ. R. 12(c).
33
   See Desert Equities, Inc. v. Morgan Stanley Leveraged Equity Fund, II, L.P., 

 (Del. 1993);
see also Warner Commc’ns, Inc. v. Chris–Craft Indus., Inc., 

, 965 (Del. Super. 1989), aff’d without
opinion 

 (Del. 1989).
34
   See Desert Equities, 

; Warner Commc’ns, 583 A.2d at 965.
35
   See McMillan v. Intercargo Corp., 

 (Del. Ch. 2000).
36
   See 

37
   See Desert Equities, 

; Warner Commc’ns, 583 A.2d at 965.

                                                        7
terminating the Agreement between Gone and Intel.38 The Court makes this finding owing to the

number of quasi-contractual claims made in the Amended Complaint.

     A.      COUNT I IS NOT A VIABLE CAUSE OF ACTION FOR PROMISSORY ESTOPPEL.

          Under Delaware law, a party seeking a promissory estoppel claim must show: (i) a

promise was made; (ii) it was the reasonable expectation of the promisor to induce action or

forbearance on the part of the promise; (iii) the promisee reasonably relied on the promise and

took action to his detriment; and (iv) such promise is binding because injustice can be avoided

only by enforcement of the promise.39 Promissory estoppel is also not applicable when there is a

fully integrated, binding contract governing the “promise” in contention.40

          It is unclear from the Plaintiffs’ arguments how Plaintiffs were induced by Intel to act in

furtherance of the Project beyond their contractual duties in the Agreement. While Plaintiffs

allege that there is both an estoppel and a promissory estoppel present, the arguments only

vaguely refer to a contractual promissory estoppel claim. As stated in the Reply, Plaintiffs failed

to address arguments as to the estoppel claim in the Opposition.

          The Court finds that this failure constitutes a waiver as to Count I. In addition, Plaintiffs

do not present sufficient evidence or facts to support the claim beyond simply stating that Intel

made “new promises and representations to Plaintiffs after the signing of the [Agreement] to

induce Mr. Gersht to perform additional work . . .”41

          Accordingly, Plaintiffs do not meet the legal standard for pleading promissory estoppel.

Plaintiffs refer to the fact that Intel sent Intel Studios employees to work with Plaintiffs on the

Project to evince that Intel made promises outside of the Agreement. Plaintiffs state that “the


38
   Am. Compl. ¶ 138.
39
   Windsor I, LLC v. CWCapital Asset Management LLC, 

, 876 (Del. 2020).
40
   See SIGA Techs., Inc. v. PharmAthene, Inc., 

 (Del. 2013).
41
   Am. Compl. ¶ 185

                                                     8
sole purpose of Plaintiffs’ work with the Architect, the Project Producer and the Development

Assistant, all commitments made by Intel not required by the [Agreement] but made after its

effective date and its signing date, was the preparation for the physical installation and exhibition

of the final work . . . .”42 Plaintiffs allege that these contributions by Intel, and Intel’s

“inducement” for Gersht to “extend his relationships with art galleries, art venues, and museums

to find multiple venues for the Project” amounted to “new promises and representations” post-

Agreement.43 Plaintiffs also point to Intel’s promises to fund the installation of the Project as an

inducing promise beyond the Agreement.44

        Intel contends that Intel’s contributions made to the Project were already within its

contractual obligations under the Agreement, and do not amount to any new promises or

engagements outside of the Agreement.45 The Statement of Work attached to the executed

Agreement states:

        Contribution of the Parties
        Intel intends to provide Studio services throughout all phases of the collaboration.
        Studio services include creative consultation, technology implementation, and use
        of Intel facilities. For the capture of volumetric video, Intel intends to provide Pre-
        Production services including material testing and technology consultations to the
        Artist, Production crew, Intel Studios stage . . . [Plaintiffs] intends to support
        outreach to galleries and artistic community to secure locations for the Catalyst
        Phase.

        [Plaintiffs] intends to support outreach to galleries and artistic community to secure
        locations for the Catalyst Phase, collaborating with members of Intel Studios team
        in the process. [Plaintiffs] intends to support all Intel distribution and promotional
        efforts through attendance at prioritized festivals and events, providing Press
        interviews and testimony.

        Financial Terms
        Intel will fund Production and Development activities for the Work. Intel and
        [Plaintiffs] will endeavor to obtain additional funding from a third party for large

42
   Am. Compl. ¶ 187.
43
   

 ¶¶ 185 – 189.
44
   Id. ¶ 148.
45
   Defs.’ Mot. at 13.

                                                    9
          scale installation and distribution. The Parties will jointly identify a list of potential
          targets to approach and engage. Intel will compensate the Artiest with fees totaling
          $108,000.

          The Court notes that Intel’s actions in sending their employees to assist Plaintiffs in the

Project and funding the installation of the Project falls within Intel’s existing contractual

obligations under the Agreement and the Statement of Work. As pled and argued, Plaintiffs do

not present any new evidence or arguments of Intel’s alleged promises or inducements beyond

the Agreement to support their promissory estoppel claim. As such, the Court finds that

Plaintiffs fail to meet any of the elements for a promissory estoppel claim. The Court will

therefore dismiss Count I.

     B.       THE COURT WILL DISMISS COUNT III FOR FAILING TO STATE A CLAIM FOR
              BREACH OF THE IMPLIED DUTY OF GOOD FAITH AND FAIR DEALING.

          Under Delaware law, a claim for a breach of the implied duty of good faith and fair

dealing requires the plaintiff to adequately show: (i) a specific implied contractual obligation, (ii)

a breach of that obligation by the defendant, and (iii) resulting damages.46 Courts should “assess

the parties’ reasonable expectations at the time of contracting, and not rewrite the contract to

appease a party who later wishes to rewrite a contract he now believes to have been a bad

deal.”47 A party generally cannot “base a claim for breach of the implied covenant on conduct

authorized by the agreement. We will only imply contract terms when the party asserting the

implied covenant proves that the other party has acted arbitrarily or unreasonably, thereby

frustrating the fruits of the bargain that the asserting party reasonably expected.”48

          Plaintiffs argue that Intel acted in bad faith when Intel “falsely [told] Plaintiffs that it was

working on the technical issues throughout June and July 2020, misleading Mr. Gersht into


46
   See Blaustein v. Lord Baltimore Capital Corp., 

, at *5 (Del. Ch. May 31, 2012)
47
   Nemec v. Shrader, 

 (Del. 2010).
48
   

                                                      10
believing his work was safe while Intel was in the process of destroying it.”49 Plaintiffs allege

that Intel made the decision to shut down Intel Studios in February or March of 2020 but

continued to express to Plaintiffs that the Project was on track.50

         Plaintiffs also claim that when Intel shut down the Intel Studios subsidiary, Intel acted in

bad faith by failing to “timely advise Mr. Gersht and Gone GB of Intel’s decision to shut down

intel Studios” which would have allegedly provided Plaintiffs an opportunity to “raise the funds

to engage the software engineers and license Intel’s proprietary software” before the Project was

terminated.51 In short, Plaintiffs allege that Intel had an implied duty to notify Plaintiffs of

Intel’s business decision to shut down Intel Studios and offer the Plaintiffs an opportunity to

purchase or license the proprietary software necessary to complete the Project. Nothing in the

Agreement, however, supports these claims.

         Here, Plaintiffs fail to offer any evidence that shows Intel breached an implied

contractual obligation owed to Plaintiff beyond the terms of the Agreement. Plaintiffs’ argument

that Intel purposely hid the fact that Intel was closing Intel Studios while “destroying” the

Plaintiffs’ work is unsupported by any evidence on the record. Additionally, the idea that the

Plaintiffs could have licensed the proprietary software to finish the Project is contradicted by the

Agreement itself, which states:

         No Other Licenses
         Neither party grants to the other Party any license or rights (by implication,
         estoppel, or otherwise) in Intellectual Property Rights it owns, is licensed to, or
         controls before, during or after entering into this Agreement, except as expressly
         granted in this Agreement.52




49
   Pls.’ Answering Br. 13.
50
   Am. Compl. ¶¶ 144-47.
51
   Id. ¶¶ 200-203.
52
   Agreement § 4.3.

                                                  11
          Plaintiffs’ arguments do not sufficiently show that Intel acted “arbitrarily or

unreasonably” in a way that frustrated the Agreement. Moreover, Plaintiffs do not sufficiently

plead an implied duty by Intel to give advanced notice of the business decision to close Intel

Studios. Plaintiffs’ claims that Intel acted in bad faith and misled Plaintiffs is also

unsubstantiated, and not supported by any factual allegations. The Court will therefore dismiss

Count III.

     C.      THE COURT WILL DISMISS COUNT IV AND COUNT V FOR FAILING TO STATE
             CLAIMS UPON WHICH RELIEF CAN BE GRANTED.

          Under Delaware law, a claim for tortious interference with a contract requires plaintiffs to

show: (i) a contract, (ii) of which the defendant knew, and (iii) an intentional act by the

defendant that is a significant factor in causing the breach of such contract, (iv) without

justification, and (v) causes injury.53 The plaintiff has the burden of showing that the defendant

acted “maliciously or in bad faith to injure plaintiff.”54

          Under Delaware law, a claim for tortious interference with prospective business relations

requires plaintiffs to establish (i) the reasonable probability of a business opportunity, (ii) the

intentional interference by defendant with that opportunity, (iii) proximate causation, and (iv)

damages.55 The business opportunity must not be a mere “perception” by the plaintiff and

requires the existence of “an actual prospective business opportunity.”56

          Plaintiffs argue that if the Court does not find the existence of valid contracts to support a

tortious interference with existing contracts, at minimum, there was an interference with

prospective business relations.57 Plaintiffs make identical arguments for both Counts IV and V.


53
   Bhole, Inc. v. Shore Investments, Inc., 

 (Del. 2013).
54
   

55
   Kable Products Services, Inc. v. TNG GP, 

, at *10 (Del. Super. June 13, 2017).
56
   

57
   Am. Compl. ¶ 221.

                                                      12
Plaintiffs argue that Intel induced Plaintiffs to “reach out to galleries, museums and other venues

to host the Project” which resulted in Mr. Gersht entering into “binding oral agreements” at three

art galleries to exhibit the Project upon its completion.58 However, the Court notes that the

Agreement anticipates this scenario. The Plaintiffs were under an existing contractual obligation

under the Agreement to utilize its connections in the art industry to find venues for the Project.

The Statement of Work states:

        [Plaintiffs] intends to support outreach to galleries and artistic community to secure
        locations for the Catalyst Phase, collaborating with members of Intel Studios team
        in the process. [Plaintiffs] intends to support all Intel distribution and promotional
        efforts through attendance at prioritized festivals and events, providing Press
        interviews and testimony.59

        Plaintiffs contend that Intel “intentionally decided not to complete the Project for its own

‘convenience’” despite Intel’s “knowledge that its actions would interfere with the business

opportunities already secured by, and those being pursued by [Plaintiffs].”60 Plaintiffs do not

sufficiently show that there were existing contracts, or an actual prospective business opportunity

of which Intel intentionally and maliciously interfered with to cause damage to the Plaintiffs.

While the Plaintiffs offer letters from art galleries as evidence confirming the cancellation of the

plans to showcase the Project, the letters do not support Plaintiff’s arguments that they equate to

the existence of valid contracts necessary for tortious interference with a contract.

        Even if the third-party contracts existed, or there was an actual prospective business

opportunity for future contracts, Plaintiffs fail to show that Intel intentionally interfered with

those ventures. This is a critical element for both claims. Intel’s decision to shut down Intel

Studios and terminate the Project with Plaintiffs is insufficient by itself to show actual intent to



58
   

 ¶¶ 207 – 225.
59
   Agreement, Ex. A-1.
60
   Am. Compl. ¶¶ 207-225.

                                                  13
interfere with an existing or prospective contracts of Plaintiffs. Plaintiffs’ claims that Intel

“intentionally decided not to complete the Project for Intel’s own “convenience” and despite

knowledge that its actions would interfere with Plaintiffs’ present and future business

opportunities are conclusory statements not supported by evidence or fact.61 As pled, Intel is

acting “selfishly” and internally, and not externally with the intent to interfere with third-party

arrangements with Plaintiffs. Furthermore, Intel alleges that Intel had no knowledge about the

oral commitments made by Plaintiff to the art galleries, the existences of which were only shown

after the Agreement was terminated.

          At the hearing, Plaintiffs failed to demonstrate the specific terms of the purported oral

contracts with the art galleries, whether Intel was aware of these contracts prior to the

termination of the Agreement, actual injuries suffered because of Intel’s termination aside from

the $3 million conclusory alleged, and any further details necessary to ascertain the actual

existence of the contracts or the prospective contract opportunities as Plaintiff claims. The Court

therefore finds that Plaintiffs fail to state supportable claims in Counts IV and V.

     D.      PLAINTIFFS HAVE FAILED TO PLEAD A VIABLE QUANTUM MERUIT IN COUNT VI.

          A quantum meruit claim permits a party to “recover the reasonable value of his or her

services if: (i) the party performed the services with the expectation that the recipient would pay

for them; and (ii) the recipient should have known that the party expected to be paid.”62 “Courts

generally dismiss claims for quantum meruit on the pleadings when it is clear from the face of

the complaint that there exists an express contract that controls.”63




61
   Am. Compl. ¶¶ 212-213, 222-223.
62
   Petrosky v. Peterson, 

 (Del. 2004).
63
   Albert v. Alex. Brown Management Services, Inc., 

, at *8 (Del. Ch. August 26, 2005).

                                                      14
         Plaintiffs allege that Intel benefited from services performed by Plaintiffs for the

Project.64 Plaintiffs state that Plaintiffs made these expenditures in “advance.”65 Also, Plaintiffs

assert that “Plaintiffs reasonably and foreseeably expected to be compensated for their services

to Intel and to be reimbursed for any advanced funds.”66 Plaintiffs further plead that as Mr.

Gersht is not a party to the Agreement, Mr. Gersht’s services were made to Intel absent an

express contract.67 Plaintiffs argue that these allegations support a quantum merit claim.

         The Court does not agree with Plaintiffs’ arguments. The Agreement was a contractual

venture between Gone and Intel, with clauses providing for an equal share of the profits from the

venture.68 Plaintiffs did not provide quasi-contractual services directly to Intel, but instead,

performed as contractually obligated under the Agreement towards the mutual goal of

completing the Project. Plaintiffs fail to show how Intel benefitted from Plaintiffs’ services

beyond the confines of the Agreement and the Project.

         Plaintiffs make a final conclusory claim that Intel retained benefits from the Plaintiffs by

being able to raise the value of Intel’s volumetric imaging software to potential buyers to the

detriment of the Plaintiffs. Plaintiffs, however, offer no factual support for this argument.69 Intel

never sold Intel Studios or the volumetric imaging software after the termination of the

Agreement.70

         Additionally, the Plaintiffs contend that they advanced funds for the Project to the benefit

of Intel is also unsupported by any evidence on the record. Moreover, this contention overlooks

the Costs and Expenses clause in the Agreement, stating: “[E]ach Party is responsible for its own


64
   Am. Compl. ¶¶ 230-32.
65
   

66
   

67
   Pls.’ Answering Br. at 4.
68
   Agreement § 3.2.
69
   Am. Compl. ¶ 234.
70
   Id. ¶ 132.

                                                  15
Budget and all costs and expenses related to performing under this Agreement . . .”71 The

Agreement also provided the Plaintiffs with $108,000 from Intel on or before December 30,

2019 as compensation for any fees or costs incurred by the Plaintiffs for the Project.72

          Furthermore, the Court cannot agree with the claim that Mr. Gersht is not a party to the

Agreement. While the Agreement does identify the parties as Intel Services Division, LLC and

Gone GB Ltd, Mr. Gersht signed the Agreement under his own name for Gone, and personally

performed Gone’s contractual obligations under the Agreement. While not a named party to the

Agreement, at minimum, Mr. Gersht is an agent of Gone—i.e., working “on behalf of Gone GB

LTD.”73 The Agreement controls and Mr. Gersht cannot act as if he is a stranger to the

Agreement.

     E.      THE COURT WILL DISMISS COUNT VII AS FAILING TO STATE A CLAIM FOR
             CONVERSION.

          Conversion is the act of dominion wrongfully exerted over the property of another, in

denial of the plaintiff’s right, or inconsistent with it.74

          Plaintiffs allege that they owned or had the right to possess the property stored within

Intel’s “Unique Electronic Production Environment” servers, and Intel, with bad intent,

“wrongfully deleted, destroyed, altered, or otherwise rendered useless, and also otherwise

retained such property.”75 Plaintiffs also contend that Intel “violated an independent duty to Mr.

Gersht by destroying his authored works.”76 Plaintiffs concede that Intel, at Intel’s cost, sent all




71
   Agreement § 3.1
72
   Defs.’ Motion for PJP 15.
73
   Agreement § 2.2.
74
   Kuroda v. SPJS holdings, LLC, 

 (Del. Ch. 2009).
75
   Am. Compl. ¶ 238.
76
   Pls.’ Answering Br. at 10.

                                                      16
the data files created during the Project to the Plaintiffs, but argues that without the use of Intel’s

proprietary software to convert the files to useable images, the data files are useless.77

          Plaintiffs fail to show how Intel wrongfully exerted dominion over the Plaintiffs’

property or define exactly what the “property" is in context of the conversion claim. Plaintiffs’

arguments seems to be that by no longer permitting Plaintiffs to utilize Intel’s proprietary

software, Intel effectively appropriated Plaintiffs’ right to continue using Intel’s software to

complete the Project. While Plaintiffs did have access and usage of Intel’s proprietary software

during the duration of the Agreement, this “right” divested at the time Intel terminated the

Agreement.

          The Court finds that Plaintiffs have failed to demonstrate that Intel wrongfully exerted

control over or otherwise converted Plaintiffs’ property. As such, the Court finds that Plaintiffs

fail to sufficiently plead for a Conversion claim.

     F.      PLAINTIFFS HAVE FAILED TO PLEAD A VIABLE CLAIM FOR UNJUST ENRICHMENT
             AND RESTITUTION.

          Unjust enrichment is the “unjust retention of a benefit to the loss of another, or the

retention of money or property of another against the fundamental principles of justice or equity

and good conscience.”78 A claim for unjust enrichment is unavailable if “there is a contract that

governs the relationship between the parties that gives rise to the unjust enrichment claim.”79

          Plaintiffs’ arguments on Count VIII are like those made in support of Count VI.

Plaintiffs maintain that Plaintiffs performed services and advanced funds to the benefit of Intel

between 2018 and 2020, and that Intel was unjustly enriched by accepting these benefits and the

Plaintiffs were damaged to the amount of $3 million as a result.


77
   Am. Compl. ¶ 239.
78
   In re Verizon Insurance Coverage Appeals, 

, 577 (Del. 2019).
79
   Kuroda, 

.

                                                      17
        Plaintiffs fail to provide any supporting facts or evidence to buttress their arguments and

alleges only conclusory statements. Plaintiffs make no attempt to explain how Intel was

enriched. Plaintiffs only state that Plaintiffs’ work enhanced the value of Intel’s technology.

There is no factual allegation to suggest that this occurred, as Intel never sold the technology of

Intel Studios to another party. Moreover, Plaintiffs do not allege any facts that show the

purported increase in value of Intel’s technology stemming from the Plaintiffs’ services and

work. Plaintiffs cannot seek restitution for a benefit that Plaintiffs cannot quantify or identify on

the pleadings. Moreover, the Agreement governs the relationship between the parties and makes

restitution and unjust enrichment claims unavailable.

   G.       THE LIMITATION OF LIABILITY CLAUSE IS APPLICABLE

        The parties dispute the applicability of the Limitation of Liability clause. This clause

provides:

        Types of Damages. Except for obligations under Section 10 (Indemnity) and breach
        of Section 7 (Confidentiality) and the CNDA, for which no limitations apply,
        [Plaintiffs] and Intel will have no liability to each other for any damages arising
        from loss of profits, loss of business, or loss of good will, or for any indirect,
        incidental, special, punitive, exemplary, or consequential damages, in any way
        arising out of or related to this Agreement or the Work, however caused.

        Total Liability. Except for obligations under Section 10 (Indemnity) and breach of
        Section 8 (Confidentiality) and the CNDA, for which no limitations apply, each
        Party’s maximum aggregate, cumulative liability to the other relating to this
        Agreement will not exceed $50,000.

        Intent. The Parties intend that these limitations of liability will apply to the
        maximum extent permitted by applicable law. The Parties also intend that these
        limitations will apply even if their application causes any remedy to fail of its
        essential purpose.

        Plaintiffs contend that Sections 12.2 and 12.4 create ambiguity on the application of

Section 11 in cases where the Agreement was terminated without cause and with bad faith.

Plaintiffs rely on Section 12.4’s language, “A Party’s right to terminate this Agreement is not an

                                                 18
exclusive remedy. The Parties have all other remedies at law or in equity available whether or

not this Agreement is terminated”80 to argue that this clause clashes with Section 11, and denotes

that Plaintiffs are afforded additional remedies beyond the $50,000 limit as per Section 11.2.

           The Court finds there is no ambiguity as to the applicability of Section 11. When

Section 12.4 is read within the context of the entirety of Section 12, it can only be reasonably

interpreted as providing additional remedies to the non-breaching party if the non-breaching

party terminated the Agreement after a breach. Section 12.2 reads:

           In addition to any other remedies under this Agreement, or as may be available at
           law or in equity, either Party may terminate this Agreement for cause if the other
           Party materially breaches this Agreement and fails to cure such breach within thirty
           (30) days after receiving written notice from the non-breaching Party of the breach.
           If the breach is incurable, the non-breaching Party may terminate immediately
           without granting the breaching Party any cure period.

           Plaintiffs rely on Intel’s termination of the Agreement as a breach, but that is not the case

here. Intel’s decision to terminate the Agreement did just that—it terminated the Agreement.

Plaintiffs do not provide evidence that Intel breached any part of the Agreement during the time

the Agreement was in force, and Plaintiffs’ arguments that Intel acted in bad faith by

misinforming the Plaintiffs of the pending Intel Studios shut down is not persuasive or supported

by evidence. Section 12 does not create any ambiguity to the application of Section 11.

           The Limitation of Liability clause is clear on its face: the parties agreed to limit the

amount recoverable for actual, direct damages arising out of or related to the Agreement or the

Project. Only breaches of the Indemnity and Confidentiality clause of the Agreement have no

limits for liability. If the parties intended to exclude the possibility of a termination of the

Agreement from the $50,000 limitation, the parties would have agreed as such in the Agreement.




80
     Agreement § 12.4.

                                                     19
                                     VI.     CONCLUSION

       For the reasons stated above, the Court GRANTS the Motion and DISMISSES Counts I,

III, IV, V, VI, VII, and VIII. In addition, the Court holds that the Limitation of Liability clause

is enforceable.

December 8, 2022
Wilmington, Delaware

                                                      /s/ Eric M. Davis
                                                      Eric M. Davis, Judge

cc: File&ServeXpress




                                                 20